Article of Interest

Is it Time to Get Your E-Discovery “House in Order”

By: Chad Love, Litigation Technology Consultant

It has been 4 years since the Federal Rules of Civil Procedure were amended to require litigants to include electronically stored information in discovery. Hopefully, by now attorneys are being proactive and not involuntarily re-active. The question is where to begin. To get your E-Discovery “House in Order,” there are three critical areas that you need to address

1. Have a defensible corporate protocol for E-discovery.
2. Understand the “Universe” of electronically stored information.
3. Effectively and efficiently navigate the mountain of data for discovery.

A DEFENSIBLE PROTOCOL
If your client’s organization does not have an E-Discovery protocol in place, you will ultimately end up handling new litigation matters in a reactionary, ad-hoc fashion. However, if your client has a well crafted protocol in place which documents company policies that automatically kick in when a reasonable expectation of litigation arises, then you will be able to accurately demonstrate that your client’s organization has taken every reasonable step to ensure that you are in compliance with the FRCP and to ensure that all discovery responses were made accurately and in good faith.

So what does this Protocol entail? The Electronic discovery process involves the identification, collection, filtering, processing, review and production of electronically stored information that exists in an organization. The protocol should mirror this process. First, identify. Your client should have an up to date network diagram of every piece of hardware in use for you organization. The collection process kicks in when there is a “reasonable expectation” of litigation and a records hold is implemented. Once the protocol has covered all the details on records hold, as the attorney, you should detail your collection process. This could involve an enterprise wide software tool or it could be that your methodology involves employing the services of an outside vendor. In either case, provide details on which software tools are to be utilized and who will be utilizing them.

At this point, the E-Discovery protocol will guide the filtering of data. It should follow agreed upon and documented criteria that have resulted from meeting with opposition. Once the collected data has been filtered, the resultant subset needs to be processed and your protocol should provide details on the tool used for processing the data for review. If you intend to outsource this function you should simply note in your protocol details on where data goes for processing and how the chain of custody is maintained. After detailing with the processing specifics, your protocol should cover details on getting processed data into a review platform and sending it to the review team with a documented chain of custody. Ideally, the processing and review software platforms are one and the same. The more seamless the protocol, the easier it is to defend.

UNDERSTANDING THE UNIVERSE OF ESI

How much do you really understand about the various forms of data? Are you comfortable with the process of Early Case Assessment of data? ECA is taking an early snapshot look at the whole universe of data involved in a matter and making decisions based on the potential exposure and costs. To be comfortable with ECA it is important to not only know about traditionally discovered sources of data such as servers, workstations, laptops, external drives, disks and voice mail but also, less traditionally discovered data sources such as structured databases, cloud collections and social media posts. In discovery, you may be required to produce reports from structured corporate data or perhaps even the entire database. Talk to your IT staff and familiarize yourself with where this data lives and how it could be produced during discovery.

You don’t have to become an IT professional to stay on top of things. However, you do have to open regular lines of communication with your IT staff. Work with them to educate yourself at a top level.

NAVIGATING THE MOUNTAIN OF DATA
It is critical that your legal review staff and outside legal counsel are utilizing a litigation document review database tool. The collected data subset that actually goes to the review team could be monstrous in size. A single person’s Outlook email container file (.pst file) can be up to 20 gigabytes in size and hold around a million emails. Litigation document review tools are built with discovery in mind. These tools have always had options for summarizing, tagging and searching documents. Recently the tools have started getting much smarter. Concept clustering, email threading, near duplicate identification and auto coding are becoming commonplace if you have the right software. These advances in technology give an advantage to the review team, but there is a bit of a catch.

The best advances in litigation review technology do not always come from the same place. Taking advantage of the latest and greatest can mean buying multiple different software tools and bolting them together in a potentially clunky fashion. Keeping in mind defensibility of process, moving data in and out of different programs and bolting on new tools with custom scripts is anything but “seamless”. The best document review tools available today are incorporated within “end to end” electronic discovery platforms. These tools allow you to navigate the mountain of data with tremendous technology at your fingertips, and they also go lock step with establishing a defensible protocol. The entire e-discovery lifecycle of collection, filtering, processing, review and production of discovery documents takes place within the governance of this single database platform. These systems are seamless, advanced, efficient, effective and very defensible. Furthermore, options are available that eliminate the need to buy any software or hardware at all. In this scenario, a software provider hosts the platform and manages everything but the review of documents for you. Payment arrangements can involve paying based on the amount of data processed or setting up “all you can eat” monthly fee arrangements. If you are ready to get serious about having a defensible e-discovery protocol in place and want to take advantage of the latest technology available for document review, looking at the end to end platform options is strongly recommended.

CONCLUSION
The entire litigation landscape was ordered to adapt and start thinking data and technology. In many cases the response has been slow. If you know that it is time to get your house in order, try to focus your attention on these three areas and attack them systematically. If you have a well thought out protocol in place, take the time to educate yourself on what exactly is meant by ESI and take advantage of the most complete end to end e-discovery tools available, you will be on your way to managing electronic discovery.

Love is the co-founder of Litigation Discovery Management Consulting Group that specializes in providing consulting and state-of-the-art technology in the electronic discovery cases. Love can be reached at chad@ldmcg.com.